Whitfield et al v. Southern Maryland Hospital, Inc. et al
Filing
35
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 4/18/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
HOLLEY F. WHITFIELD, et al.
:
v.
:
Civil Action No. DKC 12-2749
:
SOUTHERN MARYLAND HOSPITAL, INC.,
et al.
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
review
in
this
medical
malpractice case is the motion for summary judgment filed by
Plaintiffs
Holley
and
Michael
Whitfield
against
Defendants
Gastrointestinal Associates of Maryland, P.A. (“GAM”) and Dr.
Lornette Mills.
briefed,
and
necessary.
(ECF No. 17).
the
court
now
The issues have been fully
rules,
Local Rule 105.6.
no
hearing
being
deemed
For the following reasons, the
motion for summary judgment will be denied.
I.
Background
The sole issue presented in this early motion for summary
judgment is whether Plaintiffs are entitled to summary judgment
as
to
the
liability
of
two
of
the
defendants,
GAM
and
Dr.
Lornette Mills, based on their alleged failure to file required
certificates of qualified experts and attesting reports in a
timely fashion.
September
28,
The history of the case is as follows:
2008,
Plaintiff
Holley
Whitfield
went
to
On
the
emergency department at Southern Maryland Hospital, complaining
of abdominal pain and vomiting blood.
After undergoing a series
of tests and treatments over a number of days, Ms. Whitfield was
transferred to the Medical College of Virginia, where she was
ultimately treated for acute mesenteric ischemia, a malady not
diagnosed at Southern Maryland Hospital.
Defendants,
including
GAM
and
Dr.
Plaintiffs allege that
Mills,
provided
inadequate
care and treatment to Plaintiff Holley Whitfield from September
29, to October 3, 2008.
The
Maryland
Health
Care
Malpractice
Claims
Act
(the
“Malpractice Claims Act”), Md. Code Ann. Cts. & Jud. Proc. §§ 32A-01 et seq., governs the procedures for medical malpractice
claims in the state of Maryland.
400 Md. 167, 172 (2007).
See, e.g., Carroll v. Kontis,
On September 26, 2011, Plaintiffs
filed a Statement of Claim in the Healthcare Alternative Dispute
Resolution Office (“HCADRO”). The HCADRO is an administrative
body established by the Malpractice Claims Act.
The Malpractice Claims Act requires a plaintiff to file an
expert report and certificate with the HCADRO.
certificate
care,
and
are
that
to
outline
the
the
departure
“departure
from
for
extensions
of
time,
2
of
standards
care
is
of
the
Md. Code Ann. Cts. &
Jud. Proc. § 3-2A-04(b)(1)(i)(1), (b)(3)(i).
requests
from
standards
proximate cause of the alleged injury.”
This report and
After filing two
Plaintiffs
filed
two
certificates and reports of qualified experts on June 8, 2012.
The certificate of service included with the filing of these
certificates and reports notes the date and method of service as
“via U.S. Mail & Email” on June 8, 2012. (ECF No. 24-4).
day
before,
Plaintiffs’
counsel
handed
copies
of
The
these
certificates and reports to counsel for Dr. Mills and GAM while
at a deposition of one of the parties.
If
liability
is
disputed,
the
Malpractice
Claims
Act
requires that a defendant file, within 120 days of service of
the
plaintiff’s
certificate
and
report,
a
similar
expert
certificate and report “attesting to compliance with standards
of care, or that the departure from standards of care is not the
proximate cause of the alleged injury.”
Jud. Proc. § 3-2A-04(b)(2)(i).
Md. Code Ann. Cts. &
A claim “may be adjudicated in
favor of the claimant or plaintiff on the issue of liability, if
the defendant disputes liability and fails to file a certificate
of
a
qualified
expert”
inside
of
the
120
day
window.
Id.
(emphasis added).
Between the filing of the plaintiff’s expert certificate
and report, and sixty days after all parties have filed expert
certificates and reports, any party can waive arbitration, which
terminates proceedings in the HCADRO.
to (d)(1).
See id. at § 3-2A-06B(a)
The Malpractice Claims Act notes that suit may then
3
be filed in either Maryland circuit court or the U.S. District
Court.
Id. at §§ 3-2A-06A(c), 06B(f).
On July 13, 2012, Plaintiffs requested from the HCADRO a
panel
of
Defendants
potential
filed
Malpractice
an
Claims
arbitrators,
and
election
waive
Act.
On
transfer to this court.
September 14, 2012.
to
July
on
24,
2012
all
arbitration
under
the
27,
July
2012,
HCADRO
ordered
Plaintiffs filed their complaint on
(ECF No. 1).
Defendants Mills and GAM
filed their certificates and reports on October 9, 2012.
On
October 10, 2012, a scheduling order was entered. (ECF No. 15).
Among other things, this order set the deadline for Defendants’
Rule
26(a)(2)
disclosures
at
January
8,
2013.
(Id.).
On
October 16, 2012, Plaintiffs filed a motion for summary judgment
against GAM and Dr. Mills, (ECF No. 17), which these Defendants
opposed
on
October
November 13.
II.
31
(ECF
No.
24).
Plaintiffs
replied
on
(ECF No. 25).
Standard of Review
Summary judgment may be entered only if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson,
532
F.3d
291,
297
(4th
Cir.
2008).
Summary
judgment
is
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
4
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof . . . will
not
suffice
to
prevent
“A mere scintilla of
summary
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
judgment.”
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).
Liberty Lobby, 477 U.S. at
At the same time, the facts that
are presented must be construed in the light most favorable to
the party opposing the motion.
Scott v. Harris, 550 U.S. 372,
378 (2007); Emmett, 532 F.3d at 297.
III. Analysis
Plaintiffs claim that by personally handing copies of their
expert certificates and reports to Defendants’ counsel at the
June 7, 2012 deposition, they “served” Defendants pursuant to
Md. Rule 1-321, which provides “[s]ervice upon the attorney or
upon a party shall be made by delivery of a copy . . . Delivery
of a copy within this Rule means:
to the party.”
handing it to the attorney or
Accordingly, they argue that the clock began to
5
run
on
June
7,
and
that
Defendants’
expert
report was due 120 days later, October 5.
certificate
and
Defendants argue that
they were not officially served with the certificates until they
were filed, on June 8.
Furthermore, they argue that the filing
notes that service was effected “via U.S. Mail & Email” on June
8, 2012, not by hand on June 7.
Accordingly, they argue that
the 120 day clock did not begin to run until June 8, and that
their report was therefore not due until October 6, which was a
Saturday and the following Monday was Columbus Day, making their
certificate and report due to be filed by Tuesday, October 9,
2012, they day they ultimately filed it.
argue
that
this
timing
framework
does
Alternately, they
not
govern
expert
disclosures.
There are several reasons why Plaintiffs’ argument fails.
First, once the case is in federal court, federal rules apply.
See Cannon v. Kroger Co., 837 F.2d 660, 664 n. 8 (4th Cir. 1988)
(noting
that
“the
Federal
procedure
after
removal”)
Plaintiffs
certified
that
Rules
of
Civil
(citations
they
served
Procedure
omitted).
the
govern
Second,
certificates
and
reports on June 8, and cannot now be heard to contend that their
earlier
informal
supplying
of
an
additional
copy
was
the
triggering event, for purposes of the Malpractice Claims Act.
Finally, even under the Maryland law, the failure of a defendant
6
to file a timely certificate does not compel the finding of
liability, particularly absent prejudice to Plaintiffs.
A.
The Federal Rules of Civil Procedure Apply.
When Plaintiffs filed their complaint in federal court, the
Federal Rules of Civil Procedure began governing all procedural
matters in the case.
As Judge Hollander noted:
Because either party may waive arbitration
once the claimant’s expert certificate and
report have been filed, it follows that
arbitration may be waived and a judicial
proceeding
may
be
initiated
before
a
defendant has filed an expert certificate
and report.
In that event, the Malpractice
Claims Act requires the defendant to file an
expert
certificate
and
report
in
the
judicial proceeding.
See C.J. § 3–2A–
06B(b)(3) and (c)(3).
However, in Willever
v. United States, 775 F.Supp.2d 771, 778–86
(D.Md. 2011), Judge Roger W. Titus held
that, if arbitration is waived before a
defendant’s expert certificate and report
are filed, and the medical malpractice suit
is subsequently conducted in federal court,
the
statutory
provision
requiring
the
defendant to file an expert certificate and
report
is
supplanted
by
the
expert
disclosure
provisions
of
Fed.R.Civ.P.
26(a)(2).
He reasoned that, when ‘a state
law conflicts with a Federal Rule of Civil
Procedure, the federal courts [ordinarily]
must apply the Federal Rule.’ Willever, 775
F.Supp.2d at 779 (citing, inter alia, Hanna
v. Plumer, 380 U.S. 460, (1965)).
Wilson v. United States, No. ELH-11-1205, 2012 WL 1555442, at
*11
(D.Md.
Because
April
this
complaint
was
case
30,
is
filed
2012).
That
proceeding
before
in
is
situation
federal
Defendants
7
the
filed
court
their
here.
and
the
expert
certificate and report, expert disclosure is governed by the
Federal Rules of Civil Procedure.
The Malpractice Claims Act no
longer governs the timing of the filing.
The scheduling order
set the deadline for Defendant’s Rule 26(a)(2) disclosures at
January 8, 2013, and they met this deadline.
Plaintiffs argue that the Wilson and Willever cases do not
apply because they were brought under the Federal Tort Claims
Act,
and
this
jurisdiction.
case
is
here
on
the
basis
of
diversity
That is a distinction without a difference.
When
a case is before this court on diversity grounds, Erie Railroad
Company
v.
Tompkins,
304
U.S.
64,
78
(1938),
requires
application of state substantive law, but not procedure.
v. Plumer, 380 U.S. 460, 465 (1965).
and
the
Hanna
As noted in both Wilson
Willever, the filing of certificates by defendants is a
procedural matter and governed by the Federal Rules of Civil
Procedure.
B.
Service was on June 8.
Assuming,
applied,
it
arguendo,
requires
that
the
Plaintiffs
to
Malpractice
file
the
Claims
certificate
Act
and
“serve a copy of the certificate on all other parties to the
claim or action or their attorneys of record in accordance with
the Maryland Rules.”
Md. Rule 1-323 provides:
The clerk shall not accept for filing any
pleading or other paper requiring service,
other than an original pleading, unless it
8
is accompanied by an admission or waiver of
service or a signed certificate showing the
date and manner of making service.
A
certificate of service is prima facie proof
of service.
Here, Plaintiffs certified to the HCADRO that service was made
June 8 by U.S. mail and email and not by hand on June 7.
Their
argument that the certificate of service applied only to the
Line is disingenuous as the certificate of service recites that
counsel “caused a true and exact copy of the foregoing [Line]
with the accompanying Certificates of Merit, Attesting Reports,
and
curriculum
vitaes”
of
the
experts.
Thus,
service
was
effected by U.S. mail and email on June 8 and if the Malpractice
Claims Act applied, the time for Defendants to file an expert
report and certificate would not have expired until October 9.1
C.
A finding of Liability is not Required.
Finally, even if the Malpractice Act applied, and even if
service was effected on June 7, the Act does not require a
finding
in
Plaintiffs’
favor.
Rather,
the
claim
“may
be
adjudicated in favor of the claimant” if the filing is not made
within 120 days.
04(b)(2)(i).
mandated.
Md. Code Ann. Cts. & Jud. Proc. § 3-2A-
As Judge Titus held, a finding of liability is not
Willever, 775 F.Supp.2d at 778-79 (noting that the
1
Although Defendants do not rely on Fed.R.Civ.P. 6(d),
service by mail actually adds an additional 3 days to the period
within which Defendants may respond.
9
court
could
exercise
discretion
by
refusing
to
adjudicate
liability in plaintiff’s favor where defendant failed to file an
expert report as required by the Malpractice Act).
Even if
Plaintiffs’ arguments were credited, they have not demonstrated
that they were prejudiced by Defendants’ allegedly late filing,
and exercising discretion to find in Plaintiffs’ favor on the
issue of liability would not be merited.
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Plaintiffs Holley and Michael Whitfield will be denied.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?